Slaveski v State of Victoria
[2010] VSC 441
•1 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8519 of 2006
| LUPCO SLAVESKI (by his litigation guardian SNEZANA SLAVESKA) | Plaintiff |
| v | |
| STATE OF VICTORIA AND OTHERS | Defendants |
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JUDGE: | KYROU J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3-6, 11-13, 17-19, 24-25, 31 August 2009; 1-2, 7-11, 14-15, 22, 24 September 2009; 4, 14 December 2009; 1-2, 5, 8-12, 15-19, 22-25 February 2010; 1-5, 10-11, 15-19, 22-25, 29-31 March 2010, 7-9, 12-16, 19-21, 23, 27-30 April 2010; 3-7, 10-14, 17-21, 24-28, 31 May 2010; 1-4, 7-8, 10-11, 15-18, 22 June 2010; 6, 12- 13, 16, 18 August 2010 | |
DATE OF JUDGMENT: | 1 October 2010 | |
CASE MAY BE CITED AS: | Slaveski v Victoria | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 441 | |
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SELF-REPRESENTED LITIGANT – Mentally ill plaintiff – Wife acting as litigation guardian and lay advocate – Supreme Court (General Civil Procedure) Rules 2005, r 15.02(3) – Waiver of requirement that litigation guardian act by solicitor – Possible contempts of court by plaintiff.
POLICE POWER OF ARREST – Crimes Act 1958, s 459(a) – Arrest without warrant – Crimes Act, s 462A – Use of force – Use of handcuffs – Crimes Act s 459A – Entry onto premises to effect arrest.
POLICE POWER TO SEARCH PREMISES – Crimes Act, s 465 – Search of property pursuant to warrant – Requirement that execution of warrant be reasonable – Factors affecting reasonableness – Transcription of information from documents not authorised – Whether an officer who is the subject of a complaint or civil proceeding by the suspected offender should participate in search – Effect of a conflict of interest.
POLICE POWER TO FILM PREMISES BEING SEARCHED – Implied power under warrant – Video footage and photographs taken during search must be incidental to, and for the purpose of, the search – No general power to take video footage or photographs for intelligence gathering purposes.
POLICE POWER TO RETAIN SEIZED ITEMS – Meaning of Magistrates’ Court order authorising informant to retain seized items until they are required to be produced in court.
VICTORIA POLICE MANUAL – Legal status of manual – Importance of police officers identifying themselves when exercising coercive powers.
ASSAULT AND BATTERY – Whether mere words can constitute assault.
FALSE IMPRISONMENT – Crimes Act, s 464A – Whether detention of person under arrest in premises after expiration of a reasonable time for the execution of a search warrant on those premises constitutes false imprisonment.
MALICIOUS PROSECUTION – Malice – Reasonable and probable cause.
DEFAMATION – Slander.
TRESPASS TO LAND – Search warrant not executed in a reasonable manner – General search instead of search for items described in search warrant – Search took 90 minutes whereas if conducted reasonably, it would not have exceeded 60 minutes – Search unlawful during last 30 minutes – Trespass during last 30 minutes.
TRESPASS TO GOODS – Unauthorised transcription of information from documents – Asportation of documents which cannot be seized lawfully.
CONVERSION AND DETINUE – No power to retain items seized pursuant to a search warrant once a decision is made not to lay charges – No power to retain items pending completion of investigation by another law enforcement agency into matters unconnected with the purpose for which the warrant was issued – Effect of absence of demand from person entitled to possession that the seized items be returned.
NEGLIGENCE – Liability of supervising police officer for acts of subordinates – Failure to investigate complaints about the receipt of threatening telephone calls by anonymous caller or callers – Whether a duty of care is owed to the complainant – Conflicting duties principle – Public policy considerations.
STALKING – Crimes Act, s 21A(2)(a) – Meaning of ‘a course of conduct’ and ‘following the victim’.
DAMAGES – Trespass to land – Vindication of occupier’s rights – Consequential loss – Loss of business income – Difficulties in assessing – Probability-based approach – Mental trauma – Whether a natural and probable consequence of the act of trespass.
DAMAGES – Trespass to goods – Nominal damages.
LIABILITY OF STATE – Crown Proceedings Act 1958, s 23(1)(b) – Whether police officers performing duties as servants or agents of the Crown – Police Regulation Act 1958, s 123(1) and (2) – Whether acts of police officers were ‘necessarily or reasonably done … in good faith in the course of [their duty] as [members] of the force’.
PRACTICE AND PROCEDURE – Deficiencies in parties’ discovery – deficiencies in processes and procedures for retention of documents – destruction of discoverable documents.
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| APPEARANCES: | Counsel | Solicitors |
| Mrs Slaveska, as Litigation Guardian, appeared on behalf of the Plaintiff | ||
| For the First Defendant | Mr B Ihle | Victorian Government Solicitor |
| For the Second to Twenty Fourth Defendants | Mr R Gipp | Russell Kennedy |
TABLE OF CONTENTS
PART 1 – INTRODUCTION................................................................................................................ 1
(1) Nature and outcome of the proceeding.......................................................................................... 1
(2) Introduction to the parties and Mrs Slaveska................................................................................ 3
(3) Outline of the 13 incidents in dispute............................................................................................ 7
(4) Outline of the claim against Phil Lowerson................................................................................... 9
(5) Conduct of the hearing.................................................................................................................. 10
Duration of trial and its two phases.............................................................................................. 10
Warnings about the risks of litigation........................................................................................... 10
Mr Slaveski’s conduct.................................................................................................................... 11
Possible contempts of court........................................................................................................... 15
Mrs Slaveska’s conduct as litigation guardian.............................................................................. 29
My questions to the police defendants and their witnesses.......................................................... 31
Applications that I disqualify myself............................................................................................ 32
PART 2 – POLICE POWERS.............................................................................................................. 32
(1) Arrest without warrant.................................................................................................................. 33
Power of arrest conferred by s 459 of the Crimes Act................................................................... 33
Common law requirements for arrest........................................................................................... 35
Deprivation of liberty.............................................................................................................. 36
Communication of arrest......................................................................................................... 36
Communication of the reason for the arrest............................................................................ 37
Use of force.................................................................................................................................... 39
Use of handcuffs............................................................................................................................ 42
Detention of arrested person in custody....................................................................................... 43
A lawful arrest is not vitiated by subsequent unlawful conduct by the arrester.......................... 46
(2) Entry onto premises to effect arrest.............................................................................................. 46
(3) Search of property pursuant to warrant....................................................................................... 47
Common law background............................................................................................................. 47
Crimes Act, Magistrates’ Court Act and relevant regulations...................................................... 48
Execution of search warrant.......................................................................................................... 50
Belief on reasonable grounds required to seize items under warrant.................................... 52
Obligation to act reasonably in executing search warrant...................................................... 53
Factors affecting reasonableness of a search........................................................................... 57
Photographing and filming the execution of a search warrant..................................................... 59
Duty to carry seized items before Magistrates’ Court................................................................... 66
(4) Relevant provisions of the Victoria Police Manual..................................................................... 67
Legal status of the Victoria Police Manual.................................................................................... 67
Conducting and reporting investigations..................................................................................... 68
Police identification....................................................................................................................... 69
Effecting arrest............................................................................................................................... 69
Use of handcuffs............................................................................................................................ 71
Execution of search warrant.......................................................................................................... 71
Non involvement in private civil disputes.................................................................................... 72
Conflict of interest.......................................................................................................................... 73
Communicating outcome of investigation.................................................................................... 74
Return of seized property.............................................................................................................. 74
PART 3 – CAUSES OF ACTION AGAINST THE POLICE DEFENDANTS.................................. 75
(1) Assault and battery........................................................................................................................ 75
Assault........................................................................................................................................... 75
Can mere words constitute assault?........................................................................................ 76
Battery............................................................................................................................................ 81
Defences to an action in assault or battery.................................................................................... 81
(2) False imprisonment....................................................................................................................... 82
(3) Malicious prosecution................................................................................................................... 84
Malice............................................................................................................................................. 85
Absence of reasonable and probable cause................................................................................... 86
(4) Defamation.................................................................................................................................... 89
(5) Trespass to land............................................................................................................................. 91
Defence of consent......................................................................................................................... 92
Implied licence......................................................................................................................... 93
Defence of lawful authority – search warrant............................................................................... 94
(6) Trespass to goods........................................................................................................................... 94
(7) Conversion..................................................................................................................................... 96
Wrongful dispossession................................................................................................................. 98
Use................................................................................................................................................. 98
Refusal to surrender on demand................................................................................................... 98
(8) Detinue........................................................................................................................................... 99
(9) Negligence.................................................................................................................................... 102
Liability for failing to investigate a complaint of criminal activity............................................. 102
Conflicting duties principle................................................................................................... 102
Principles based on public policy.......................................................................................... 103
Summary of principles........................................................................................................... 108
Liability of a supervising police officer....................................................................................... 109
PART 4 – GENERAL COMMENTS ON EVIDENCE AND CREDIT............................................ 112
(1) The parties and Mrs Slaveska..................................................................................................... 115
Mrs Slaveska................................................................................................................................ 115
Mr Slaveski.................................................................................................................................. 116
Shaun Bingham – second defendant........................................................................................... 118
Mark Smithwick – third defendant............................................................................................. 118
Paul Kirkright – fourth defendant............................................................................................... 118
Leigh Cole – fifth defendant........................................................................................................ 118
Catherine Sadler – sixth defendant.............................................................................................. 118
Adrian Tennyson – seventh defendant........................................................................................ 118
Glenn Parker – eighth defendant................................................................................................. 119
Phil Lowerson – ninth defendant................................................................................................ 119
Graeme Wheeler – tenth defendant............................................................................................. 119
Paul Smith – eleventh defendant................................................................................................. 119
Andrew Roberts – twelfth defendant.......................................................................................... 119
Timothy Robinson – thirteenth defendant.................................................................................. 119
Andrew Stephen – fourteenth defendant.................................................................................... 119
Craig Rhodes – fifteenth defendant............................................................................................. 120
Garry Barton – sixteenth defendant............................................................................................. 120
Peter Jones – seventeenth defendant........................................................................................... 120
Timothy Peck – eighteenth defendant......................................................................................... 120
Kevin Nolan – nineteenth defendant........................................................................................... 120
Michael Baade – twentieth defendant......................................................................................... 120
Michael Leemon – twenty-first defendant................................................................................... 120
Philip Wendt – twenty-second defendant................................................................................... 120
Peter Anderson – twenty-third defendant.................................................................................. 120
Matthew Knowles – twenty-fourth defendant............................................................................ 120
(2) Other witnesses........................................................................................................................... 121
Non-medical witnesses for the plaintiff...................................................................................... 121
Non-medical witnesses for the police defendants....................................................................... 122
Medical witnesses........................................................................................................................ 122
PART 5 – FACTUAL FINDINGS AND CONCLUSIONS ON LIABILITY................................... 122
(1) First incident – 8 September 2000............................................................................................... 123
Whittlesea City Council’s allegations against Mr Slaveski......................................................... 123
What was not in dispute.............................................................................................................. 129
Matters in dispute and my findings on them.............................................................................. 134
Belief held by officers who arrested Mr Slaveski.................................................................. 135
Initial discussion with Mrs Slaveska..................................................................................... 137
Telephone discussion between officer Bingham and Mr Slaveski........................................ 138
Discussion before Mr Slaveski entered the Lalor shop......................................................... 141
Physical contact before Mr Goodwin’s arrival...................................................................... 146
Remaining events before the arrival of additional police officers......................................... 151
Officers who attended the Lalor shop to assist officers Bingham and Smithwick................ 161
Mr Slaveski’s physical restraint and handcuffing................................................................. 167
Events in and around Lalor shop subsequent to handcuffing; Mr Slaveski’s tablets........... 183
Events in vehicle conveying Mr Slaveski to Mill Park police station.................................... 189
Events at Mill Park police station.......................................................................................... 195
Mr Slaveski’s injuries............................................................................................................. 199
Damage to merchandise in the Lalor shop............................................................................ 206
Outcome of charges at Melbourne Magistrates’ Court on 16 February 2001........................ 206
Security camera footage inside the Lalor shop on 8 September 2000................................... 209
Findings on liability..................................................................................................................... 211
Lawfulness of Mr Slaveski’s arrest; false imprisonment....................................................... 211
Trespass to the Lalor shop..................................................................................................... 214
Assault and battery in the Lalor shop................................................................................... 216
Assault and battery on the way to the police vehicle and in the vehicle.............................. 218
Trespass to goods and conversion......................................................................................... 219
Failure of police officers to display identification................................................................. 219
(2) Second incident – 18 December 2003.......................................................................................... 219
Dealings between Mr Slaveski and The Good Guys store.......................................................... 219
Evidence on disputed facts.......................................................................................................... 220
Evidence of officers Sadler, Kirkright, Leemon and Peck..................................................... 220
Evidence of Mr and Mrs Slaveski.......................................................................................... 224
Findings on disputed facts........................................................................................................... 226
Findings on liability..................................................................................................................... 229
(3) Third incident – 14 April 2004..................................................................................................... 232
Mr Slaveski’s loans to Aneli Manevska....................................................................................... 232
Evidence on disputed facts.......................................................................................................... 234
Evidence of officers Jones and Peck....................................................................................... 234
Evidence of Mr and Mrs Slaveski.......................................................................................... 241
Evidence of Michael Butler.................................................................................................... 244
Findings on disputed facts........................................................................................................... 245
Findings on liability..................................................................................................................... 250
(4) Fourth incident – 22 June 2005.................................................................................................... 255
Mr Slaveski’s arrest and incarceration on 17 November 2004.................................................... 255
Mr Slaveski’s writ dated 22 June 2005 against officer Sadler...................................................... 256
Evidence on disputed facts.......................................................................................................... 257
Evidence of Mr and Mrs Slaveski.......................................................................................... 257
Evidence of officers Nolan, Cole, Brewer and Lockwood..................................................... 261
Findings on disputed facts........................................................................................................... 271
Findings on liability..................................................................................................................... 278
(5) Fifth incident – 13 December 2005.............................................................................................. 280
Allegations by Sam Pandev against Mr Slaveski........................................................................ 280
Decisions to arrest Mr Slaveski and to obtain a search warrant................................................. 285
Police briefings and other activities prior to Mr Slaveski’s arrival at the Lalor shop................. 292
Overview of arrest and execution of search warrant.................................................................. 295
Time spent by police in arresting Mr Slaveski and executing search warrant...................... 295
Property seizure record and photographs of seized items.................................................... 298
Officer Wendt’s footage of arrest and execution of search warrant............................................ 300
Summary of events depicted in officer Wendt’s footage...................................................... 300
Footage outside the Lalor shop............................................................................................. 301
Initial footage inside the Lalor shop...................................................................................... 302
Footage of removal of handcuffs and commencement of search............................................... 303
Footage of search in downstairs office area............................................................................ 305
Footage of Mr and Mrs Slaveski speaking to a lawyer by telephone........................................ 308
Further footage of search in downstairs office area................................................................ 309
Footage of the ‘taking’ of documents falling outside the warrant............................................ 310
Footage of upstairs area including recording studio.............................................................. 312
Footage in technicians’ workshop and rear courtyard............................................................ 314
Final footage in downstairs office area.................................................................................. 315
General observations about the events depicted in officer Wendt’s footage........................ 315
Mrs Slaveska’s mobile phone video footage of execution of search warrant............................. 318
Matters in dispute and my findings on them.............................................................................. 319
Belief held by officers regarding the power to arrest Mr Slaveski........................................ 320
Belief held by officers regarding the necessity to handcuff Mr Slaveski.............................. 322
Police identification, informing Mr Slaveski he was under arrest and cautioning............... 325
VPM provisions regarding police identification.................................................................... 325
Importance of police identification in our liberal democratic society....................................... 326
Non-compliance with VPM provisions regarding police identification................................... 328
Officer Baade’s dialogue with Mr Slaveski at the time of his arrest......................................... 330
Officers present at the Lalor shop and their roles................................................................. 334
Lawfulness of the execution of the search warrant............................................................... 339
Service of search warrant on Mr Slaveski and explanation of its contents............................... 340
Identification of officers engaged in the execution of the search warrant................................. 342
Misconceptions about the scope of authority conferred by the search warrant......................... 343
Search was unreasonable – it was general and not tailored to meet requirements of warrant.... 350
Was the number of officers executing the search warrant excessive?...................................... 358
Reasonable time to execute the warrant................................................................................ 359
Conclusion regarding lawfulness of search........................................................................... 360
No express or implied licence to remain in any part of the Lalor shop................................ 361
Conflict of interest by officers Sadler and Cole..................................................................... 363
Theft of documents, evidence and equipment...................................................................... 367
Reasons for and lawfulness of filming and photographing of execution of warrant........... 375
Reasons for taking the footage and the photographs............................................................... 376
The lawfulness of officer Wendt’s footage and officer Knowles’ photographs........................... 380
Tampering with officer Wendt’s footage............................................................................... 387
Court order authorising officer Sadler to retain seized items............................................... 392
Lawfulness of retention of seized items after decision not to charge Mr Slaveski............... 394
Failure to communicate to Mr Slaveski that he would not be charged................................. 397
Mr Slaveski’s complaint to the ESD............................................................................................. 399
Findings on liability..................................................................................................................... 400
Lawfulness of Mr Slaveski’s arrest; false imprisonment....................................................... 400
Battery and other torts relating to arrest and handcuffing of Mr Slaveski........................... 402
Execution of search warrant and taking video footage; trespass to land.............................. 402
Execution of search warrant; trespass to goods.................................................................... 403
Theft of documents, evidence and musical equipment; conversion..................................... 404
Unlawful retention of seized items; trespass to goods, conversion and detinue.................. 405
False imprisonment in Lalor shop during period of unlawful search.................................. 405
(6) Sixth incident – 13 January 2006................................................................................................. 413
Evidence....................................................................................................................................... 413
Evidence of Mr and Mrs Slaveski.......................................................................................... 413
Evidence of officers Tennyson, Billing, Cross and Lockwood.............................................. 415
Findings on disputed facts........................................................................................................... 419
Findings on liability..................................................................................................................... 422
(7) Seventh incident – 8 June 2006.................................................................................................... 423
Encounters between Mr Slaveski and officer Parker before 8 June 2006.................................... 423
Epping Plaza incident on 12 July 2005................................................................................... 423
Fawkner Cemetery incident on 12 April 2006....................................................................... 424
Events of 8 June 2006................................................................................................................... 426
Findings on disputed facts........................................................................................................... 428
Findings on liability..................................................................................................................... 430
(8) Eighth incident – 12 July 2006..................................................................................................... 431
Evidence....................................................................................................................................... 431
Evidence of Mr and Mrs Slaveski and Mr Tancevski............................................................ 431
Evidence of officer Parker...................................................................................................... 433
Evidence of officers Bakas and Gray..................................................................................... 437
Documentary evidence.......................................................................................................... 439
Findings on disputed facts........................................................................................................... 440
Findings on liability..................................................................................................................... 445
(9) Ninth incident – 13 July 2006...................................................................................................... 446
Interrelationship with the twelfth incident on 29 January 2007.................................................. 446
Evidence on disputed facts.......................................................................................................... 447
Evidence of Mr Slaveski and Mr Tancevski.......................................................................... 447
Evidence of officer Parker...................................................................................................... 450
Evidence of PSOs Crawford, Lovett and Datoy and officer Hodge...................................... 454
Evidence of officer Smith....................................................................................................... 459
Documentary evidence.......................................................................................................... 461
Evidence on undisputed facts regarding Mr Slaveski’s hospitalisation..................................... 461
Findings on disputed facts........................................................................................................... 462
Findings on liability..................................................................................................................... 464
(10) Tenth incident – 20 July 2006.................................................................................................... 465
Evidence....................................................................................................................................... 465
Findings on disputed facts........................................................................................................... 470
Findings on liability..................................................................................................................... 472
(11) Eleventh incident – 14 August 2006.......................................................................................... 472
Evidence....................................................................................................................................... 472
Findings on disputed facts........................................................................................................... 474
Findings on liability..................................................................................................................... 475
(12) Twelfth incident – 29 January 2007........................................................................................... 475
Interrelationship with the ninth incident on 13 July 2006........................................................... 475
Officer Smith’s role as investigation officer for officer Parker’s THASM files............................ 476
Evidence....................................................................................................................................... 477
Events of 13 July 2006............................................................................................................ 477
Officer Smith’s investigation – 14 July 2006 to 28 January 2007............................................ 480
Officer Smith’s arrest of Mr Slaveski on 29 January 2007...................................................... 485
Events between Mr Slaveski’s arrest and the hearing of the charges................................... 489
Hearing of the charges against Mr Slaveski.......................................................................... 490
Different versions of the Children’s Court CCTV footage.................................................... 491
Footage on the original CD and original DVD...................................................................... 494
Tampering with the Children’s Court CCTV footage........................................................... 499
Offence of stalking – s 21A of the Crimes Act.............................................................................. 505
Course of conduct.................................................................................................................. 506
Following the victim.............................................................................................................. 508
Findings on disputed facts........................................................................................................... 509
Tampering with the Children’s Court CCTV footage........................................................... 509
Conspiracy and fabrication of evidence................................................................................ 511
Belief held by officer Smith regarding the power to arrest Mr Slaveski............................... 511
Findings on liability..................................................................................................................... 513
Lawfulness of Mr Slaveski’s arrest; false imprisonment....................................................... 513
Malicious prosecution............................................................................................................ 514
Elements of the tort............................................................................................................. 514
Did officer Smith act maliciously?....................................................................................... 515
Did officer Smith act without ‘reasonable and probable cause’?............................................. 517
Conclusion......................................................................................................................... 522
(13) Thirteenth incident – 7 May 2007.............................................................................................. 522
Murder of Mr Slaveski’s tenant on 13 April 2007........................................................................ 522
Evidence on disputed facts.......................................................................................................... 523
Findings on disputed facts........................................................................................................... 525
Findings on liability..................................................................................................................... 526
(14) Claim against Phil Lowerson.................................................................................................... 527
Particulars of alleged duty of care and its breach....................................................................... 527
Relationship between officer Lowerson and Mr Slaveski........................................................... 528
Allegations unrelated to threatening telephone calls.................................................................. 535
Factual findings regarding officer Lowerson’s involvement in the 13 incidents.................. 535
Factual findings insufficient to warrant imposition of legal liability.................................... 541
Allegations relating to threatening telephone calls..................................................................... 542
Nature of claim and use of expression ‘threatening calls’..................................................... 542
Evidence of Mr and Mrs Slaveski.......................................................................................... 545
Evidence of officer Lowerson................................................................................................ 549
Evidence of officers Parker and Smith................................................................................... 551
Evidence of Lindsay Alexander............................................................................................. 551
Evidence of officer Lockwood............................................................................................... 552
Further evidence of officers Smith and Lowerson................................................................ 556
Documentary evidence relating to the threatening telephone calls...................................... 557
Findings on disputed facts..................................................................................................... 562
Did Mr Slaveski receive threatening calls between 23 June 2005 and 3 August 2009?............ 562
Were the defendants involved in the making of the threatening telephone calls?...................... 564
Did officer Lowerson receive / investigate Mr Slaveski’s complaint about threatening calls?... 568
No duty of care to investigate Mr Slaveski’s complaint........................................................ 571
Dismissal of Mr Slaveski’s claims against officer Lowerson....................................................... 580
PART 6 – COMPENSATORY DAMAGES – POLICE DEFENDANTS......................................... 580
(1) Principles relating to compensatory damages............................................................................ 580
Damages for trespass to land....................................................................................................... 580
Nominal damages.................................................................................................................. 580
General damages................................................................................................................... 581
Damages for trespass to goods.................................................................................................... 584
(2) Factual findings relating to compensatory damages................................................................. 584
Mr Slaveski’s health..................................................................................................................... 584
Health prior to 8 September 2000.......................................................................................... 584
Health between 8 September 2000 and 13 December 2005................................................... 587
Incident of 8 September 2000.............................................................................................. 587
Incidents of 18 December 2003 and 14 April 2004................................................................ 594
Events of November 2004.................................................................................................... 595
Incident of 22 June 2005..................................................................................................... 597
Health following the incident of 13 December 2005.............................................................. 598
Health after 1 January 2006.................................................................................................... 601
Incident of 13 January 2006................................................................................................ 601
Incident of 8 June 2006....................................................................................................... 601
Incident of 12 July 2006...................................................................................................... 601
Incident of 13 July 2006...................................................................................................... 603
Incident of 20 July 2006...................................................................................................... 604
Incident of 14 August 2006................................................................................................. 604
Incident of 29 January 2007................................................................................................ 605
Incident of 7 May 2007....................................................................................................... 605
Did the police defendants cause a Post Traumatic Stress Disorder?..................................... 605
Disability pension.................................................................................................................. 612
Loss of income from business activities...................................................................................... 612
Loss of business opportunity – proposed import business......................................................... 619
Did any wrongful acts of the defendants affect Mr Slaveski’s business income?....................... 620
Business income prior to 13 December 2005......................................................................... 620
Effect of incident of 13 December 2005 on business income................................................. 622
Business income after 1 January 2006.................................................................................... 627
Mr Slaveski’s music career........................................................................................................... 627
Mr Slaveski’s recording studio.................................................................................................... 629
Loss of enjoyment of life.............................................................................................................. 630
(3) Compensatory damages for the acts of trespass of 13 December 2005..................................... 632
Trespass to land........................................................................................................................... 632
Damages for vindication of right to exclusive use and occupation...................................... 634
Damages for consequential loss............................................................................................. 636
Summary of damages for trespass to land............................................................................ 638
Trespass to goods......................................................................................................................... 638
PART 7 – LIABILITY OF THE STATE............................................................................................ 640
(1) Section 23(1)(b) of the Crown Proceedings Act 1958................................................................. 640
(2) Section 123(2) of the Police Regulation Act................................................................................ 641
(3) Liability for acts of trespass committed on 13 December 2005................................................. 643
PART 8 – GENERAL OBSERVATIONS......................................................................................... 645
(1) The parties’ submissions............................................................................................................. 645
Mrs Slaveska’s unfounded allegations........................................................................................ 645
(2) Deficiencies in the defendants’ discovery and document retention........................................ 647
PART 9 – PROPOSED ORDERS...................................................................................................... 652
PART 10 – GLOSSARY OF TERMS AND ABBREVIATIONS...................................................... 652
HIS HONOUR:
PART 1 – INTRODUCTION
(1) Nature and outcome of the proceeding
Lupco Slaveski has sued 23 present or former police officers (‘police defendants’) and the State of Victoria (‘State’) seeking damages for assault and battery, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods, conversion, detinue and negligence.
The claims against the police defendants arise out of 13 incidents that occurred between 8 September 2000 and 7 May 2007. All of the police defendants were based at the Epping, Mill Park or Preston police stations during this period. In addition, a claim in negligence has been made against a senior officer – Phil Lowerson – alleging that he failed to prevent the other officers from committing wrongful acts against Mr Slaveski and to investigate his complaints about the receipt of threatening telephone calls.
The claim against the State is principally made under s 123(2) of the Police Regulation Act 1958 (Vic) (‘PR Act’), which, in certain circumstances, transfers a police officer’s liability to the State. It is alleged that the State is liable for any damages otherwise payable by the 23 police defendants.
Mr Slaveski suffers from a mental illness. Initially, he represented himself. Since 28 January 2010, his wife, Snezana Slaveska, has acted as his litigation guardian and lay advocate.
For the reasons set out below, I have reached the following conclusions in relation to Mr Slaveski’s claims:
Claim Conclusion Damages Is State liable? 8 September 2000 incident Dismiss all claims. – – 18 December 2003 incident Dismiss all claims. – – 14 April 2004 incident Dismiss all claims. – – 22 June 2005 incident Dismiss all claims. – – 13 December 2005 incident[1] · Officers Kirkright, Baade, Sadler, Cole, Knowles, Anderson and Wendt trespassed upon Mr Slaveski’s shop at 10 May Road, Lalor by remaining inside the shop for 30 minutes longer than was reasonably necessary to execute the search warrant.
· Officers Kirkright and Knowles also trespassed by remaining in the recording studio after it became obvious that none of the items described in the search warrant were located there.
· Officers Wendt and Kirkright also trespassed by remaining in the rear courtyard after it became obvious that none of the items described in the search warrant were located there.
· Officers Wendt and Sadler also trespassed by taking, or directing the taking of, video footage of activities, objects or parts of the shop that had no connection to the execution of the search warrant.
· Officer Sadler trespassed upon Mr Slaveski’s goods by taking documents to officers Cole and Anderson and instructing them to transcribe information from the documents, without lawful authority.
· Officers Cole, Anderson and Sadler trespassed upon Mr Slaveski’s goods by transcribing information from documents, or directing the transcription of information, without lawful authority.
· Dismiss all other claims.
$12,200
Part of $12,200 award
Part of $12,200 award
$15,000
$200
$900
–
Yes
Yes
Yes
Yes
Yes
Yes
–
13 January 2006 incident Dismiss all claims. – – 8 June 2006 incident Dismiss all claims. – – 12 July 2006 incident Dismiss all claims. – – 13 July 2006 incident Dismiss all claims. – – 20 July 2006 incident Dismiss all claims. – – 14 August 2006 incident Dismiss all claims. – – 29 January 2007 incident Dismiss all claims. – – 7 May 2007 incident Dismiss all claims. – – Claim against Phil Lowerson Dismiss all claims. – – Total Damages: $28,300 Yes [1]For the reasons set out below at [2360] and [2362], it is not necessary to apportion the amount of damages between the seven officers.
A further hearing will take place to deal with Mr Slaveski’s claims for aggravated and exemplary damages and interest. That hearing will also deal with costs and the form of the orders to be made.
For convenience, Part 10 contains a glossary of terms and abbreviations.
(2) Introduction to the parties and Mrs Slaveska
In this Part 1(2), I briefly set out details of the parties and Mrs Slaveska. Reference is made to the incidents at which a particular police defendant was present. The incidents are briefly outlined in Part 1(3) below.
Mr Slaveski – the plaintiff. Mr Slaveski was born on 20 March 1963 in the Macedonian region of what was then Yugoslavia. He was 14 years old when he arrived in Australia in 1978. He played in a band from a young age and, when he was 17 years old, he began working as a disc jockey with the stage name ‘Sky’. He aspired to international stardom as a songwriter and singer. Between 1996 and 2006, he operated electronic retail sales and service, finance broking and leasing businesses in the Lalor and Thomastown areas.
Initially, Mr Slaveski carried on the businesses as a sole trader. Subsequently, the businesses were conducted through Sky Empire Pty Ltd (‘Sky Empire’) trading as ‘Sky TV & Video Service’ and ‘Sky Finance’, and Sky Prestige Sales – Lease – Rentals Pty Ltd (‘Sky Prestige’).[2] In the period 1997 to 2006, his main place of business was his shop at 10 May Road, Lalor (‘Lalor shop’), which comprised two levels. Between early 1999 and February or March 2001, he had a second shop at 453 High Street, Northcote (‘Northcote shop’). Between February 2001 and December 2005, another shop was conducted at 261 High Street, Thomastown (‘Thomastown shop’). Mr Slaveski’s businesses stopped trading in October 2006. Since then, he has been a recipient of disability benefits.
[2]The company was originally named Sky Prestige Rentals Pty Ltd.
It was not in dispute that Mr Slaveski suffers from a panic disorder; however, the severity and causes of this disorder were in dispute. The parties were also in dispute about whether Mr Slaveski suffered from other mental illnesses and, if so, about the causes of any such illnesses. Throughout the trial, Mr Slaveski was taking medication, including Xanax tablets.
Mrs Slaveska – Mr Slaveski’s wife. Mrs Slaveska was born in the Macedonian region of the former Yugoslavia. Her maiden name, which she continues to use occasionally, is Angeleska. She met Mr Slaveski in Macedonia in 1992. They were married that year and she moved to Australia in December 1992. She and Mr Slaveski have two teenaged daughters and a teenaged son. Mrs Slaveska is enrolled in an arts degree at La Trobe University and is undertaking some legal studies as part of that degree. She was present at most of the incidents that are the subject of this proceeding.
Shaun Bingham – second defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.
Mark Smithwick – third defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.
Paul Kirkright – fourth defendant. He was allegedly involved in the incident of 8 September 2000. At that time, he was based at the Mill Park police station and held the rank of detective senior sergeant. It was not in dispute that he was involved in the incident of 13 December 2005. At that time, he was based at the Mill Park police station and continued to hold the rank of detective senior sergeant. At all times that are relevant to this proceeding, officer Kirkright was the officer in charge of the Mill Park police station.
Leigh Cole – fifth defendant. He was allegedly involved in the incident of 8 September 2000. At that time, he was working in Melbourne as part of the Tactical Response Group and held the rank of detective senior constable. It was not in dispute that he was involved in the incident of 13 December 2005. At that time, he was based at the Mill Park police station and held the rank of detective senior constable.
Catherine Sadler – sixth defendant. She was involved in the incidents of 18 December 2003 and 13 December 2005 while she was based at the Mill Park police station. She held the rank of detective senior constable on 18 December 2003 and the rank of detective acting sergeant on 13 December 2005.
Adrian Tennyson – seventh defendant. He was allegedly involved in the incidents of 13 December 2005 and 13 January 2006 while he was based at the Epping police station and held the rank of leading senior constable.
Glenn Parker – eighth defendant. He was allegedly involved in the incidents of 8 June, 12, 13 and 20 July and 14 August 2006 while he was based at the Epping police station and held the rank of sergeant.
Phil Lowerson – ninth defendant. At all times that are relevant to this proceeding, he was a senior sergeant. In September 2000, he was the officer in charge of the Preston police station. From January 2001 until his retirement on 4 April 2008, he was the officer in charge of the Epping police station. Mr Slaveski alleges that, in the period from September 2000 to May 2007, officer Lowerson breached an alleged duty to prevent other police officers from engaging in wrongful conduct towards him and that, after June 2006, officer Lowerson failed to investigate his complaints about the receipt of threatening telephone calls.
Graeme Wheeler – tenth defendant. He was allegedly involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.
Paul Smith – eleventh defendant. He was involved in the incident of 29 January 2007 while he was based at the Preston police station and held the rank of detective sergeant.
Andrew Roberts – twelfth defendant. He was involved in the incident of 8 September 2000. At that time, he was a uniformed officer based at the Epping police station. He was in the Traffic Management Unit performing motorcycle duties and held the rank of senior constable.
Timothy Robinson – thirteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of senior constable.
Andrew Stephen – fourteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of constable.
Craig Rhodes – fifteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective sergeant.
Garry Barton – sixteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.
Peter Jones – seventeenth defendant. He was involved in the incident on 14 April 2004 while he was based at the Mill Park police station and held the rank of detective sergeant.
Timothy Peck – eighteenth defendant. He was allegedly involved in the incident of 18 December 2003. It was not in dispute that he was involved in the incidents of 14 April 2004 and 7 May 2007. At the time of the 2003 and 2004 incidents, he was based at the Mill Park police station and held the rank of detective senior constable. At the time of the 2007 incident, he was part of the Homicide Squad in Melbourne and held the rank of detective senior constable.
Kevin Nolan – nineteenth defendant. He was involved in the incident of 22 June 2005 while he was based at the Mill Park police station and held the rank of leading senior constable.
Michael Baade – twentieth defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective sergeant.
Michael Leemon – twenty-first defendant. He was involved in the incident of 18 December 2003 while he was based at the Mill Park police station and held the rank of detective senior constable.
Philip Wendt – twenty-second defendant. He was involved in the incident of 13 December 2005. At that time, he was a uniformed constable who was performing temporary duties at the Mill Park crime investigation unit (‘CIU’).
Peter Anderson – twenty-third defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective senior constable.
Matthew Knowles – twenty-fourth defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective senior constable.
(3) Outline of the 13 incidents in dispute
In this Part 1(3), I set out a brief outline of the 13 incidents that are part of Mr Slaveski’s claim.
First incident – 8 September 2000. Mr Slaveski alleges that officers Bingham, Smithwick, Kirkright, Cole, Wheeler, Roberts, Stephen, Robinson, Rhodes and Barton entered the Lalor shop and unlawfully assaulted him, handcuffed him and took him into custody. He also claims that they damaged merchandise in the shop and that officer Bingham punched him while they were in a police vehicle on the way to the Mill Park police station. The causes of action alleged are false imprisonment, assault, battery, trespass to goods, conversion and (possibly) trespass to land.
Second incident – 18 December 2003. Mr Slaveski alleges that officer Sadler and either officer Peck or officer Leemon entered the Lalor shop and unlawfully demanded payment of an amount of $890 that was the subject of a dishonoured cheque to The Good Guys store at 290 Settlement Road, Thomastown (‘The Good Guys store’). He also claims that officer Sadler said to him, ‘I will get you for this’. The causes of action alleged are trespass to land and (possibly) assault.
Third incident – 14 April 2004. Mr Slaveski alleges that officers Jones and Peck entered the Lalor shop and unlawfully demanded items that had been left with Mr Slaveski by a client (Aneli Manevska) as security for a loan. The causes of action alleged are trespass to land and (possibly) assault.
Fourth incident – 22 June 2005. Mr Slaveski alleges that, while he and his family were in the reception area of the Mill Park police station, officer Nolan said to a person who was present (Ray Rivett) that Mr Slaveski was ‘the worst criminal in the area’. The cause of action alleged is defamation.
Fifth incident – 13 December 2005. Mr Slaveski alleges that officers Kirkright, Baade, Sadler, Cole, Anderson, Knowles, Wendt and Tennyson unlawfully arrested and handcuffed him outside the Lalor shop and then conducted a search of the Lalor shop in a manner that exceeded their powers under the relevant search warrant. Mr Slaveski also claims that the police officers stole documents and musical equipment, unlawfully took video footage and photographs, and failed to return to him seized items after they had decided not to charge him with any offence relating to those items. The causes of action alleged are assault, battery, false imprisonment, negligence, trespass to land, trespass to goods, conversion and detinue.
Sixth incident – 13 January 2006. Mr Slaveski alleges that officer Tennyson stalked him and made threatening hand gestures towards him while officer Tennyson was across the road from the Lalor shop. The cause of action alleged is assault.
Seventh incident – 8 June 2006. Mr Slaveski alleges that, while he was in the Children’s Court at Melbourne (‘Children’s Court’) waiting to be called as a witness in a proceeding between officer Parker’s wife, Jasmina Talevska, and her former husband, Nicola Stavreski, officer Parker requested protective services officers (‘PSOs’) to eject him from the building. It is not clear what cause of action is alleged.
Eighth incident – 12 July 2006. Mr Slaveski alleges that officer Parker attended outside the Lalor shop and stalked and made threatening hand gestures towards him through the shop window. The cause of action alleged is assault.
Ninth incident – 13 July 2006. Mr Slaveski alleges that, while he was in the Children’s Court waiting to be called as a witness in the adjourned hearing of the proceeding between Ms Talevska and Mr Stavreski, officer Parker requested PSOs to eject him from the building. It is not clear what cause of action is alleged.
Tenth incident – 20 July 2006. Mr Slaveski alleges that, while he was at the Epping Plaza Shopping Centre (‘Epping Plaza’), officer Parker stalked and behaved in a threatening manner towards him. The cause of action alleged is assault.
Eleventh incident – 14 August 2006. Mr Slaveski alleges that, while he was at the Epping Plaza, officer Parker stalked and behaved in a threatening manner towards him. The cause of action alleged is assault.
Twelfth incident – 29 January 2007. Mr Slaveski alleges that officer Smith unlawfully arrested him and charged him with stalking officer Parker at the Children’s Court on 13 July 2006. The causes of action alleged are false imprisonment and malicious prosecution.
Thirteenth incident – 7 May 2007. Mr Slaveski alleges that officer Peck said to him over the telephone that ‘Anybody can get shot these days anytime, anywhere’. The cause of action alleged is assault.
(4) Outline of the claim against Phil Lowerson
Mr Slaveski alleges that officer Lowerson owed him a duty to take reasonable care for his safety and that he breached that duty by, among other things, failing to prevent the other police defendants from committing wrongful acts against him and failing to investigate his complaints about the receipt of threatening telephone calls. The cause of action alleged is negligence.
(5) Conduct of the hearing
Duration of trial and its two phases
The trial had two phases. The first phase of the trial commenced on 3 August 2009 and ended on 14 December 2009. The second phase of the trial commenced on 1 February 2010 and ended on 18 August 2010.[3]
[3]The evidence was completed on 22 June 2010. The defendants filed written submissions on 14 July 2010 and Mrs Slaveska filed written submissions on 4 August 2010. The defendants elected not to file written submissions in reply. Oral submissions were made on 12, 13, 16 and 18 August 2010.
During the first phase, Mr Slaveski represented himself with the assistance of Mrs Slaveska as a McKenzie friend. During the second phase, Mrs Slaveska appeared on behalf of Mr Slaveski as his litigation guardian and lay advocate.
The trial occupied 115 sitting days and generated 16,166 pages of transcript. Its duration considerably exceeded the time that was reasonably required to deal with the issues in the proceeding. The inordinate delay in the completion of the hearing was caused by a combination of Mr Slaveski’s mental illness and the lack of legal representation. Mr Slaveski wasted time and behaved inappropriately when he represented himself from the bar table and when he gave evidence from the witness box. Mrs Slaveska wasted time in examining witnesses – and, in particular, in cross-examining the police defendants – due to her lack of legal training. I will further discuss the conduct of Mr and Mrs Slaveski below.
Warnings about the risks of litigation
Throughout the first phase and the early stages of the second phase of the trial, I repeatedly warned the parties about the risks of litigation. In particular, I pointed out that the multiplicity of claims against the separate defendants meant that the proceeding would not necessarily lead to an ‘all or nothing’ result. I specifically warned Mr and Mrs Slaveski that a possible outcome of the proceeding was that Mr Slaveski might succeed on some claims against some defendants, but that the damages awarded in his favour might be substantially exceeded by the costs awarded in favour of the other, successful, defendants. Notwithstanding my warnings, the parties pressed on with the trial.
Mr Slaveski’s conduct
Mr Slaveski’s behaviour during the first phase of the trial was discussed in detail in my interlocutory judgments dated 24 September 2009[4] and 14 December 2009.[5] The first interlocutory judgment sets out details of Mr Slaveski’s inappropriate behaviour, the advice and warnings that I gave to him and my reasons for adjourning the hearing pending receipt of an independent psychiatric report on his mental illness. The second interlocutory judgment explains why I concluded that Mr Slaveski was not capable of managing his affairs in relation to this proceeding and why Mrs Slaveska was appointed as his litigation guardian.
[4]Slaveski v Victoria [2009] VSC 423 (24 September 2009).
[5]Slaveski v Victoria [2009] VSC 596 (14 December 2009).
Mrs Slaveska’s appointment as litigation guardian took effect shortly before the completion of her cross-examination. Her re-examination was in the form of comments by her on aspects of the evidence she gave in cross-examination.
During the first and second phases of the trial, I explained to Mr Slaveski and Mrs Slaveska, respectively, the rules of evidence and procedure on various issues, and provided other assistance to them, in accordance with my duty to ensure a fair trial. This duty was discussed by Bell J in Tomasevic v Travaglini[6] in the context of a self-represented litigant. The current proceeding, and its unusual course, has highlighted the need to ensure that the principles governing a trial judge’s duty to conduct a fair trial where one of the parties is self-represented are flexible and pragmatic so that the trial judge has sufficient latitude to manage the proceeding in the interests of all the parties and of the administration of justice. It is vital that the principles are formulated and applied in a manner that does not tip the balance too far in favour of self-represented litigants, impose too high a burden on the trial judge or result in prejudice to opposing parties.[7]
[6](2007) 17 VR 100, 129-30 [139]-[142].
[7]Cf Pamamull v Albrizzi (Sales) Pty Ltd [2010] VSCA 185 (16 July 2010) [29].
Unfortunately, on 9 February 2010, the second day of his examination in chief, Mr Slaveski became abusive and made scurrilous allegations against the defendants and Victoria Police generally. He also made offensive comments in relation to counsel for the police defendants, Mr Gipp.
At the commencement of the hearing on 10 February 2010, during a discussion about the Court’s sitting times, Mr Slaveski again became abusive and unruly, and used profane language. I adjourned the hearing briefly. When the hearing resumed, I informed Mrs Slaveska that I would not tolerate such behaviour and I reminded her that, in my judgment of 24 September 2009,[8] I had left open the possibility that the defendants or the Court might revisit the question of whether the hearing should be stayed if that course was warranted by the circumstances. I said that I would not permit repetition of the type of conduct that had occurred during the hearing in September 2009. At this point, Mr and Mrs Slaveski became emotional and I stood down the matter briefly.
[8]Slaveski v Victoria [2009] VSC 423 (24 September 2009) [74].
After the hearing resumed, Mrs Slaveska informed me that she had discussed with Mr Slaveski options for limiting his evidence in chief so as not to provoke similar outbursts from him. She said that certain events were very sensitive for Mr Slaveski and that, when he was questioned about them, he had flashbacks to those events which caused him to become angry and verbally aggressive. Mrs Slaveska said that, where she and Mr Slaveski were both present on any occasion that was relevant to the proceeding, she would ask Mr Slaveski whether he had heard her evidence and whether he would adopt it, instead of asking him to give his own detailed account of the events.
I adjourned the hearing for an additional period to enable Mrs Slaveska to consider further how she wished to proceed with Mr Slaveski’s evidence. After the adjournment, Mrs Slaveska informed me that she wished to proceed with Mr Slaveski’s evidence and that she would be selective about the questions that she asked him.
The defendants adopted the sensible approach of agreeing to treat comments that Mr Slaveski made from the bar table regarding the contents of any video, DVD or audio tape that was played in the Court as if those comments had been made by him as a witness under oath. They agreed to do so subject to their right to cross-examine Mr Slaveski in respect of the comments and to make submissions about the admissibility or weight of the comments. This approach saved the Court’s valuable time and assisted the progress of the hearing.
On 1 March 2010, at the conclusion of Mr Slaveski’s evidence, I informed him that he was welcome to remain in the Court while other witnesses gave evidence, but that he would be asked to leave the Court building for the rest of any day on which he became disruptive.
Mr Slaveski became disorderly on 4 March 2010 while Jacqueline Baldwin was being cross-examined by Mr Gipp; on 15 and 17 March 2010 while officer Bingham was being cross-examined by Mrs Slaveska; and on 18 March 2010 while officer Smithwick was being examined in chief by Mr Gipp. I ordered that he remain away from the Court building for the rest of the day on 4, 15 and 17 March 2010 and for the rest of the sitting week on 18 March 2010.
On 29 March 2010, during the examination in chief of officer Barton, I ordered that Mr Slaveski remain away from the Court building for the rest of that day. I made a similar order on 31 March 2010 during the cross-examination of Professor David Wells; on 15 April 2010 during the cross-examination of officer Rodney Brewer; on 28 and 29 April 2010 during the cross-examination of officer Sadler; on 14 May 2010 during the cross-examination of officer Knowles; on 1 June 2010 during the examination in chief of Lindsay Alexander; and on 2 June 2010 prior to the examination in chief of PSO Della Lovett.
The conduct of Mr Slaveski that resulted in his removal from the Court, or in him being reprimanded by me, included menacing behaviour towards me and witnesses. Examples of such inappropriate conduct include:
(a)On 15 March 2010, Mr Slaveski asked me, ‘Are you a puppet for the State?’ and then said to Mrs Slaveska, ‘They’re corrupted mate including this judge is corrupted.’
(b)On 18 March 2010, Mr Slaveski called me ‘biased’.
(c)On 22 March 2010, after I rose at 4.15pm, Mr Slaveski took a photograph in the courtroom of officer Rhodes, who was still under cross-examination.
(d)On 29 March 2010, Mr Slaveski accused me of being ‘corrupted’. Relevant extracts from the transcript are set out at [69] below.
(e)On 31 March 2010, Mr Slaveski called out ‘Thank you Doctor’ when Professor David Wells gave an answer in cross-examination which Mr Slaveski perceived to be favourable to him.
(f)On 15 April 2010, Mr Slaveski said, among other things, that I was corrupt and that maybe he should sue me or apply to the Sheriff of the High Court to have me arrested. Relevant extracts from the transcript are set out at [70] below.
(g)On 28 April 2010, while I was absent from the courtroom during a brief adjournment, Mr Slaveski responded to my associate’s request that he calm down by saying, ‘No, you people are tampering with evidence mate’ and ‘Yeah, because all of you people are corrupted mate’.[9]
(h)On 29 April 2010, Mr Slaveski twice accused me of being ‘biased’.[10]
(i)On 14 May 2010, Mr Slaveski called a witness, officer Knowles, a ‘crook’ and threatened to photograph him.[11]
(j)On 1 June 2010, while Lindsay Alexander was being examined in chief by Mrs Slaveska, Mr Slaveski threatened to sue him.
(k)On 2 June 2010, Mr Slaveski threw a tantrum. Over several minutes, he ranted and raved, uttered vulgarities and accused me of being part of a conspiracy and of ‘probably’ being aware of an alleged attempt on his life that morning. Relevant extracts from the transcript are set out at [74] below.
[9]See further below at [71].
[10]See further below at [72].
[11]See further below at [73].
Possible contempts of court
In the course of the second phase of the trial, there were seven occasions when Mr Slaveski engaged in conduct which arguably constituted a contempt of court. In respect of each occasion, I informed Mr and Mrs Slaveski that, once I had made final orders in the proceeding, I would invite submissions from the parties as to whether Mr Slaveski’s conduct constituted a contempt of court and, if so, what should be done about it.[12]
[12]Although the actual wording varied slightly, in substance, this is what I said to Mr Slaveski or, in his absence, Mrs Slaveska either on the day on which the incident occurred or on the next day of the hearing.
The first incident involving conduct which arguably constituted a contempt of court occurred on 25 March 2010. Prior to the luncheon adjournment on the previous day, Mrs Slaveska had requested an adjournment in order to obtain legal advice on whether to seek leave to withdraw as Mr Slaveski’s litigation guardian and on whether to make an application that I disqualify myself. I adjourned the hearing until 10.15am on 25 March 2010 to enable Mrs Slaveska to obtain advice on these issues. At 5.00pm on 24 March 2010, Mrs Slaveska sent an email to my associate and to the other parties, stating that she had been unsuccessful in obtaining legal advice. There was no suggestion of ill health. On 25 March 2010, however, my associate received the following telephone messages from Mr Slaveski and his three children:
[9.01am] G’day Shaun, this is a message for you and to Mr Kyrou. Snezana was just taken by an ambulance. I called the ambulance at 8.30. They came about 8.40 … of feeling dizzy. All of her right side has been numb and I personally hold the judge responsible for putting pressure on Snezana. I told him not to put pressure on her. She told him not to put pressure on her. Even the judge said to her … even … sorry … even the doctor said … she needs to take it easy but the judge is putting pressure on her. So please give me a call so I can give you more information. She has been hospitalised … taken by an ambulance at the Northern Hospital in Epping. He is responsible for all this … for not disclosing that he used to work for the Police Association and also for working for the State. No wonder I used to call him he is bias … and there you go … and Snezana said now … this morning to me at about 7 o’clock that yes, the judge is bias. So please give me a call. He cannot … he must not put pressure on Snezana like he has. Now, the phone number is […]. Thank you.
[9.09am] Shaun, Mr Slaveski here. Pick up the phone. I wanna tell you what happened to my wife. It all happened because of the judge, okay. So pick up the phone. If I have to call you 50 times today we’ll call you. You people are putting pressure on my wife.
Mrs Slaveska’s unfounded allegations
Mrs Slaveska made submissions and cross-examined the police defendants and their witnesses on an array of issues which were not relevant to this proceeding. She made wide-ranging and unsubstantiated allegations, some of which were quite bizarre. A common theme running through her submissions and cross-examination was that the police defendants were corrupt and participated in various conspiracies with their lawyers, other police officers, Mr Slaveski’s former lawyers, Council officers and others to destroy Mr Slaveski’s businesses and reputation, to lock him up based on fabricated evidence and even to kill him.
Another common theme was that the police defendants were responsible for every misfortune that has been visited upon Mr Slaveski since 8 September 2000. Adverse events in Mr Slaveski’s life, which had no apparent connection with each other, were attributed to the police defendants. It was put that the events were not random, but were orchestrated by the police defendants as part of an overall plan dating back to at least 8 September 2000 to destroy Mr Slaveski financially, mentally and physically.
All of these allegations were a figment of Mr Slaveski’s vivid imagination and can be readily dismissed without any further discussion. There are five matters, however, that Mrs Slaveska advanced at various stages of the hearing that are worth mentioning to illustrate the absurdity of her contentions. Those matters are as follows:[834]
(a)The Mill Park CIU referred to themselves as ‘the Carlton Crew’ and ‘the Untouchables’, and regarded themselves as being ‘above the law’. These allegations lacked any factual basis. They were simply made up by Mrs Slaveska.
(b)The police defendants owned or had interests in the Cash Converters store in Epping, which competed with Mr Slaveski’s businesses. From as early as 1998, they conspired to take away Mr Slaveski’s second-hand dealer’s licence and put him out of business. The only evidence that Mr and Mrs Slaveski advanced in support of the allegation that the police defendants had an interest in Cash Converters was that officer Kirkright was one of the organisers of an annual charity function for Cystic Fibrosis Victoria and that Cash Converters was a regular sponsor of that event.[835] The only evidence that they advanced in support of the existence of the alleged conspiracy was that, in 1998, officer Cole was one of the officers who investigated breaches of second-hand dealers’ licence legislation by Mr Slaveski, which resulted in the cancellation of Mr Slaveski’s second-hand dealer’s licence by the Preston Magistrates’ Court.[836]
(c)A similar but more nebulous conspiracy theory was espoused in relation to The Good Guys store. The only evidence advanced in support of the alleged conspiracy was the ‘Sgt Pete’ poster,[837] officer Kirkright’s friendship with the manager (Mr McCalman) and evidence given by some of the police defendants that The Good Guys store sponsored the annual charity function for Cystic Fibrosis Victoria.
(d)The police defendants were jealous of Mr Slaveski’s success as a businessman. They were so obsessed with him and so consumed by their desire to kill him or to fabricate evidence in order to have him convicted and locked up for a long time that, when they went on interstate fishing holidays, they spent their time plotting against him.
(e)The police defendants distributed photographs of Mr Slaveski to criminals so that they could shoot him.
[834]Other matters are discussed above at [423], [1220], [1626], [1862] to [1866] and [1988].
[835]Mr Slaveski sought production of documents by each of the police defendants showing any financial or other involvement that they or immediate members of their family had with Cash Converters. No such records existed. The company searches of the relevant companies also did not disclose any financial interest by any of the police defendants. In cross-examination, each of the police defendants denied having any interest in Cash Converters.
[836]See above [2246].
[837]See above [777].
Mr Gipp submitted that the ‘completely unfounded allegations’ that have been made against the police defendants and the attacks on their reputations and their professional and personal integrity have caused much stress. I have no doubt that this has been the case. My rejection of the allegations that are set out at [2367] above and the findings that I have made in favour of individual police defendants on specific issues should provide some comfort to them.
(2) Deficiencies in the defendants’ discovery and document retention
In a proceeding involving 13 separate incidents extending over a seven-year period commencing in 2000, it is inevitable that there will be some deficiencies in the parties’ discovery. That has certainly been the position in this case.
The deficiencies in the defendants’ discovery, however, extended beyond those that might normally be expected, particularly having regard to the following:
(a)The first defendant is the State of Victoria, which aspires to act as a model litigant and which would therefore be expected to have, and to enforce, record-keeping procedures that have the effect of preserving documents and other items where there is a real prospect that they may be required as evidence in future proceedings.
(b)The second to twenty-fourth defendants are present or former police officers who are trained to take contemporaneous notes and to retain them for possible use in court proceedings.
(c)On 11 August 2009, the fifth day of the trial, I requested Mr Gipp to communicate to each of the police defendants that ‘they should consider whether they have, in their personal possession, custody or power, or … physically within the premises of their respective police offices, any document which is relevant to this proceeding’. I did so because ‘it would be unfortunate if there are other oversights of this type that emerge down the track’.
Regrettably, such oversights did emerge subsequently and did so on a fairly regular basis. The State discovered a large number of important documents in the course of the trial. Several affidavits were sworn to provide supplementary discovery and to explain the late discovery. The main reason given was that there are difficulties in the coordination of a large, complex organisation such as Victoria Police. While I accept that this is so, in my opinion, one of the reasons for the deficient discovery was that insufficient thought was given to the issues in the proceeding and to the types of documents that were relevant to each of those issues.
Of even greater concern was that a number of relevant documents could not be produced to the Court because they were destroyed, mislaid or lost. Examples include:
(a)the running sheets of:
(i)officer Wheeler for 8 September 2000;
(ii)officer Lowerson for 8 September 2000, 22 June 2005, 13 December 2005 and 12 July 2006;
(iii)officers Tennyson, Billing and Cross for 13 January 2006;
(iv)officer Bakas for 12 July 2006; and
(v)officer Parker and the other officers who were engaged in Operation Smokescreen at the Epping Plaza on 20 July 2006;
(b)the operational diaries of officers Rooney and Nikolaou for 13 December 2005;
(c) the day books of:
(i)officer Brewer for 2005;[838] and
(ii) officer Billing for 2006; and
(d)the order made by the Melbourne Magistrates’ Court on 14 December 2005 authorising officer Sadler to retain the items seized from the Lalor shop on 13 December 2005.
[838]Officer Brewer gave evidence that he had provided his day book to officer Lockwood, while officer Lockwood denied having received it.
In my opinion, the reasons given for the destruction of some documents in accordance with standard document destruction processes were unacceptable. Where a complaint alleging serious misconduct is made against a police officer in respect of an incident, there is clearly a real prospect that a civil action might be brought in respect of that incident. It therefore beggars belief that a critical document in relation to that incident, such as a running sheet or a day book, would be destroyed after two years in accordance with standard document destruction processes, rather than be retained for at least the period prescribed by the Limitation of Actions Act 1958 for the bringing of an action.
The running sheet for 20 July 2006 involving officer Parker and other officers who were engaged in Operation Smokescreen at the Epping Plaza was destroyed in accordance with Victoria Police’s two-year retention policy for such documents. This was despite the fact that officer Parker was served with the writ in the proceeding on 7 September 2007, well within the two-year period, and the fact that the document had obvious relevance to this proceeding.
In some cases, relevant entries from diaries or day books were photocopied and retained for the purposes of this proceeding, while the original diaries or day books were destroyed or misplaced. Clearly, this was not in accordance with the defendants’ discovery obligations. The originals should have been safeguarded so that they could be produced for inspection or tendering in the Court.
Some documents which were obviously relevant were discovered very late during the running of the trial. For example, it was not realised until officer Cole was giving evidence on 17 May 2010, the eighty-seventh day of the trial, that only one of two critical pages from his day book for 13 December 2005 had been discovered.[839] Another example was the failure by the State to discover the documents that were seized from the Lalor shop on 13 December 2005 until after the commencement of the trial. A further example was the discovery of a diary entry by PSO Hodge just prior to the commencement of his examination in chief.[840]
[839]The information on the page that was discovered late is set out above at [1251]. As appears above at [1251], I have used this information in support of my finding that some of the police defendants committed a trespass to goods.
[840]Similar examples were the notebook of officer Paul Nikolaou for 13 December 2005 and the operational diary of officer Elizabeth Wood for 13 December 2005, which were discovered four hours before they were due to give evidence.
Even worse, some documents were discovered after relevant witnesses had completed their evidence, necessitating the recall of the witnesses. For example, officer Smith was recalled after the late discovery of a memorandum he wrote to Mr Ferridge; officer Lowerson was recalled after the late discovery of a critical facsimile coversheet to officer Smith;[841] and officer Cole was recalled after the late discovery of some emails.
[841]See above [2047].
Some documents which were initially said to be lost or destroyed were produced to the Court following further inquiries. Examples include officer Wheeler’s diary for 2000 and officer Nolan’s day book for 2005, both of which were produced after their authors had completed their evidence.
Although the problems I have referred to above caused only short-term inconvenience to Mrs Slaveska and to the Court, and did not result in any substantive prejudice or unfairness, it must be remembered that the normal difficulties experienced by a party in dealing with late discovery are exacerbated when that party is self-represented.
Some of the problems to which I have referred above can be put down to miscommunication and inadequate coordination. I am not persuaded, however, that this explanation applies to all of the instances of lost, destroyed or mislaid documents. I have a real concern that some instances may be explicable only by a lack of understanding by some police officers of their discovery obligations or by the failure of those officers to take their discovery obligations seriously. Either way, the position is unacceptable and reflects poorly on those involved. I am also concerned that the number of lost, destroyed or mislaid documents – including a document that was destroyed after the defendants were served with the writ in this proceeding – suggests that there may be systemic flaws in the document retention and discovery processes that are overseen by the Civil Litigation Division of Victoria Police.
As the problems with discovery emerged in a piecemeal fashion, the police defendants were not questioned in detail about them and it would be unfair and inappropriate for me to make any adverse findings about any individual. On this occasion, it suffices for me to record the Court’s disappointment with the manner in which the defendants discharged their discovery obligations.
I am heartened by the statement in the affidavit of superintendent Peter Lardner[842] that the Civil Litigation Division ‘is currently reviewing its policies and practices in order to implement more effective processes for the identification, retention and provision of relevant documents for the purposes of discovery’. The provisions of the VPM dealing with document retention and destruction should also be reviewed.
[842]Officer Lardner is in charge of the Civil Litigation Division of Victoria Police. The affidavit was sworn on 14 July 2010.
Ultimately, as much of the documentation that was in issue in this proceeding was held at the level of the individual officer or police station, a review of the processes applied by the Civil Litigation Division would not be sufficient. In my opinion, it is necessary for individual members and officers in charge to be better trained in respect of their discovery and document retention obligations, and in relation to the potentially serious consequences of non-compliance with those obligations.[843] In particular, it should be emphasised that a document must not be destroyed if it is, or if it is reasonably likely to be, required in evidence in a legal proceeding, even if the relevant retention period for that document under standard document destruction processes has expired.[844]
[843]See Crimes Act s 254; Evidence (Miscellaneous Provisions) Act 1958 s 89B.
[844]See Crimes Act s 254(1).
Nothing that I have said should be construed as implying that the deficiencies in discovery were confined to the defendants; Mr Slaveski’s discovery also left much to be desired. Critical documents[845] were discovered during the trial. I have focused my attention on the discovery of the defendants, however, because the Court is entitled to expect from them a detailed understanding of, and timely compliance with, their discovery obligations.
[845]Examples include the covering letter which is referred to above at [922] and Mrs Slaveska’s footage which is referred to above at [1136].
PART 9 – PROPOSED ORDERS
I will order that the further hearing of the proceeding be adjourned to a date to be fixed so that the parties may make submissions on aggravated and exemplary damages, interest and costs, and on the form of the orders to be made.
PART 10 – GLOSSARY OF TERMS AND ABBREVIATIONS
Attendance Summary
The document that records Mr Slaveski’s attendance at the Mill Park police station on 13 December 2005. See [1045]
B Digital
B Digital Ltd
CAV
Consumer Affairs Victoria
CCTV
Closed circuit television
Charter
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Children’s Court
The Children’s Court at Melbourne
CIU
Crime Investigation Unit of Victoria Police. This was known as the Crime Investigation Branch (CIB) prior to 2000
Council
Whittlesea City Council
DMS
Diagnostic and Statistical Manual of Mental Disorders
Dr Satha
The psychiatrist who treated Mr Slaveski from approximately February 1999. See [699]
D24
Victoria Police Communications. See [434]
Epping Plaza
Epping Plaza Shopping Centre
ESD
Ethical Standards Department of Victoria Police
Exhibit Log
The document that records details of the execution of the search warrant at the Lalor shop on 13 December 2005. See [1046]
FSD
Forensic Services Department
Ganxin
Ganxin Television Ltd. See [2274]
incidental nexus requirement
This relates to the taking of video footage or photographs during the execution of a search warrant. See [192]
Lalor shop
Shop situated at 10 May Road, Lalor. See [10]
LEAP
Law Enforcement Assistance Program. This is a police database
Midas premises
The premises of Midas Car Care located at 224 Settlement Road, Thomastown. See [1014]
Mobile Phone
The mobile phone referred to at [1056]
Mrs Slaveska’s footage
The video footage taken by Mrs Slaveska on her mobile phone on 13 December 2005
Northcote shop
Shop situated at 453 High Street, Northcote. See [10]
officer Wendt’s footage
The video footage taken on the Mill Park CIU video camera by officer Wendt on 13 December 2005 while Mr Slaveski was arrested outside the Lalor shop and a search warrant was executed inside the shop
OPI
Office of Police Integrity
original CD
The CD containing footage from the Children’s Court CCTV system from 13 July 2006 that was downloaded by PSO Crawford on the same day. See [1772] and [1777]
original DVD
The DVD containing footage from the Children’s Court CCTV system from 13 July 2006 that was copied by the FSD on 28 September 2006 from the original CD. See [1777] and [1814]
PAD dog
Passive Alert and Detection dog
police defendants
The second to twenty-fourth defendants
PR Act
Police Regulation Act 1958 (Vic)
prank calls
See [1999] to [2004]
proper purpose requirement
This relates to the taking of video footage or photographs during the execution of a search warrant. See [192]
Property Seizure Record
The document that records the items seized from the Lalor shop on 13 December 2005. See [1055]
PSO
protective services officer
PTSD
Post Traumatic Stress Disorder
Receipt
The receipt referred to at [1056]
Regulations
Crimes (Search Warrant) Regulations 2004 (Vic)
Selim matter
Mr Slaveski’s visit to the premises of Quick Silver Automotive on 5 November 2004 and the charges that were brought against him in relation to that visit. See [908]
seven detectives
Detectives Kirkright, Baade, Sadler, Cole, Anderson, Knowles and Wendt. They participated in the arrest of Mr Slaveski and the execution of a search warrant at the Lalor shop on 13 December 2005
Sgt Pete poster
A Neighbourhood Watch poster containing a business card of Bernie McCalman of The Good Guys store. See [777]
Sky Empire
Sky Empire Pty Ltd trading as ‘Sky TV & Video Service’ and ‘Sky Finance’
Sky Prestige
Sky Prestige Sales – Lease – Rentals Pty Ltd, previously known as Sky Prestige Rentals Pty Ltd
SOCA Unit
The Sexual Offences and Child Abuse Unit
State
State of Victoria
Stavreski proceeding
Proceeding in the Children’s Court in 2006 in which Ms Talevska sought an intervention order against Mr Stavreski on behalf of their two daughters. See [1527]
THASM
Threat Against a Serving Member. See [1532]
The Good Guys store
The Good Guys store at 290 Settlement Road, Thomastown. See [38]
Thomastown shop
Shop situated at 261 High Street, Thomastown. See [10]
threatening calls
See [2001] to [2004]
VIFM
Victorian Institute of Forensic Medicine
VPM
Victoria Police Manual
Watch
The watch referred to at [1056]
2005 writ
Writ filed on 22 June 2005 by Mr Slaveski against officer Sadler claiming $350,000 and costs. See [912]
265 duties
Duties occasionally performed by officers Kirkright and Lowerson as the divisional supervisor for the entire response zone for the City of Whittlesea. See [1210] and [1945]
3G
Hutchinson 3G Australia Pty Ltd
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